Building permit for a free-stall barn and silo in an agricultural zone encroaching on surfaces d'assolement: appeal dismissed, balancing of interests upheld

Facts

The appeal concerns a judgment of the Administrative and Public Law Court of the Cantonal Court of the Canton of Vaud of 14 January 2019 (AC.2017.0280), confirming the building permits issued on 16 June 2017 by the Municipality of Vulliens to the respondent, an agricultural operator.

On 9 March 2016, the respondent submitted a preliminary application for a free-stall livestock barn, a slurry pit and a tower silo on plot 290, zoned agricultural and consisting of pasture and field land. Following exchanges between the Cantonal Department of Territorial Development (SDT) and the DGE-DIRNA, two permit applications were filed on 8 November 2016: one for the barn and the above-ground slurry pit, and one for a silo 15 m high and 610 cm in diameter.

The appellants, owners of the neighbouring plot 392 (agricultural zone, residential building of 104 m²), lodged objections. The CAMAC issued positive summaries on 19 and 20 April 2017. The Municipality dismissed the objections and issued the authorisations, subject to compliance with the conditions of the CAMAC summary.

After a local inspection, the cantonal court confirmed these decisions: the projects complied with the agricultural zone designation and did not infringe the principle of preserving surfaces d'assolement (SDA). The President of the First Public Law Chamber rejected the application for suspensive effect on 7 March 2019.

The appellants principally request the annulment of the Municipality's decisions and, in the alternative, the remittal of the case. They allege a violation of the right to be heard (refusal of requests for evidence concerning the SDA and the creation of the need by the respondent), a violation of Art. 3 para. 2 let. a SPA, of Arts. 26 and 30 SPO, of Art. 9 Cst., of Art. 34 para. 4 let. b SPO, and arbitrary application of Arts. 85 and 86 LATC as well as Art. 47 RPGA (height of the silo).

The Cantonal Court waived the submission of observations. The SDT and the DGE-DIRNA, the Commune and the respondent request dismissal. The Federal Office for Spatial Development (ARE) raised criticisms regarding the statement of facts and the examination of the necessity of the existing buildings.

Considerations

On admissibility, the Federal Supreme Court accepts the neighbours' standing to appeal (Art. 89 para. 1 FSCA), their land being located about one hundred metres from the buildings and exposed to the nuisances of the planned operation. The appeal is admissible.

On the right to be heard (Art. 29 para. 2 Cst.), the Federal Supreme Court recalls that the authority may close the investigation after a non-arbitrary anticipatory assessment of the evidence. Regarding the cantonal SDA quota and the flat-rate allowance of 3.5% of the cantonal structure plan (PDCn), the cantonal court could consider that this allowance appeared high and decline to order production of the SDA logbook. The canton still had a reserve of 61 ha relative to the quota of the federal sectoral plan, and the appellants did not demonstrate any excess. Regarding the creation of the need by the respondent, the local inspection established that the other plots were unsuitable (landslide zone, lack of space, slope, central location). The complaint is dismissed.

On the merits, Art. 3 para. 2 let. a SPA requires that sufficient good land, including SDA, be reserved for agriculture; the cantonal structure plan binds the authorities (Art. 9 para. 1 SPA). However, the construction of agricultural buildings serves a public interest, namely ensuring a sufficient supply for the country (Art. 1 para. 2 let. d SPA). Since these objectives are of equal rank, the encroachment on SDA must be integrated into an overall balancing of interests. In the absence of rezoning to building land, no compensation is required (Art. 30 para. 1 SPO), the cantonal planning providing a nuance for agricultural constructions conforming to the zone. Art. 30 para. 2 SPO is complied with given the reserve available, and Art. 30 para. 4 SPO is also complied with, the sheet having been updated in 2018.

On conformity with the agricultural zone (Arts. 16a and 22 SPA, Art. 34 SPO), the constructions must be genuinely necessary for the operation, and their necessity is assessed objectively, building by building, first examining the possibility of using existing premises. In this case, the…